Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 62039625
MORRISON, Acting P.J.
A jury convicted defendant Francisco Galvan Chavarria of rape of an incapacitated person (Pen. Code, § 261, subd. (a)(3)), sexual battery (§ 243.4, subd. (e)(1)), residential burglary (§§ 459, 460), and petty theft. Defendant was sentenced to state prison for seven years four months.
Hereafter, references to undesignated code sections are to the Penal Code.
On appeal, defendant contends (1) his conviction of sexual battery must be reversed and dismissed because it is a necessarily included offense of rape of an incapacitated person; (2) if sexual battery is not a necessarily included offense of rape of an incapacitated person, the sentence imposed for the battery must be stayed pursuant to section 654; (3) the evidence was insufficient to support the burglary and petty theft convictions; (4) if the evidence is sufficient to support the burglary and petty theft convictions, the concurrent term for the petty theft must be stayed pursuant to section 654; (5) prosecutorial misconduct requires reversal of all convictions; and (6) imposition of consecutive terms violated his right to a jury trial and proof beyond a reasonable doubt as set forth in Blakely v. Washington (2005) 542 U.S. 296 [159 L.Ed.2d 403].
With the exception of defendant’s second and fourth contentions, which we conclude have merit, we reject his other claims. Accordingly, pursuant to section 654, we shall stay the sentences imposed for the sexual battery and petty theft convictions.
FACTS
On October 25, 2003, 28-year-old Denise, who was recently separated from her husband, went with Jennifer to a Halloween party hosted by Joanne. Defendant and his friends Chris, Moses (Moe) and Andrew also attended the party. Nervous because she had not been out alone socially for quite a while, Denise drank excessively, became extremely intoxicated, and needed to be helped by Joanne and Jennifer to Joanne’s bedroom where Denise laid on the bed.
While in the bedroom, Denise threw up several times into the plastic grocery bag. Denise needed to go to the bathroom but could not walk there so she urinated in a trash can which was near the bed. Joanne and Jennifer stayed with Denise until she stopped having dry heaves, at which time they left the room to let Denise sleep.
Sometime later, Denise partially awoke and vaguely recalled seeing defendant, whom she thought was her husband, come into the room and kneel in front of her. Still thinking that defendant was her husband, Denise kissed him and lifted her buttocks to help him remove her pants. Denise, who was drifting in and out of consciousness, felt pain in her vagina, awakened, and saw that the pain was being caused by defendant, whom she realized was not her husband, having sexual intercourse with her. Although Denise did not want to have sex with defendant, she was unable to move and lost consciousness.
Jennifer returned to the bedroom about 2:00 a.m. to check on Denise and found defendant naked and laying on top of Denise having sexual intercourse. Denise’s eyes were closed and she appeared “lifeless.” Jennifer left the room and told others what she had seen.
In the meantime, defendant left the bedroom and told Chris that he “just got laid.” Defendant and Chris returned to the bedroom where defendant got into bed with Denise and pulled the covers over their heads.
Brian, a friend of Denise’s, was aware of how drunk Denise was, saw defendant and Chris enter the bedroom and tried to follow, but the door was locked. Brian forced open the door and defendant, from under the covers, asked who he was. Defendant said that he was Denise’s brother. Chris and defendant then left.
Denise was still “pretty out of it,” but she remembered hearing Brian tell defendant to get out. Denise realized that she had been raped and began crying hysterically. Brian held a comforter from the bed around Denise and walked her to the shower. While in the shower, Denise heard defendant laughing and became angry because he was still in the house. She wrapped herself in a towel and confronted him, screaming, “Why did you put your fucking hands on me; who told you you could put your hands on me” and hit defendant.
Joanne confronted defendant about having sex with Denise and he replied, “I fooled around with her, you know me.” Joanne told defendant to leave and he said, “you’re not going to be accusing me of something, . . .”
After some swearing, defendant and his companions left, but they returned a short time later and took a keg of beer from Joanne’s garage.
At Denise’s insistence, Joanne called 911 and reported the rape. Later that morning, Joanne went to Moe’s house and demanded the return of her keg. Moe returned the keg and apologized for taking it.
Defendant testified, admitting having sexual intercourse with Denise, but claiming it was consensual. Defendant admitted returning to the party with his friends and taking Joanne’s keg of beer from her garage.
DISCUSSION
I
Defendant contends that his conviction for sexual battery (§ 243.4, subd. (e)(1)) must be reversed and dismissed because that offense is necessarily included in his conviction for rape (§ 261, subd. (a)(3)). Defendant is wrong.
A defendant may not be convicted of both a greater and a necessarily included offense. (People v. Pearson (1986) 42 Cal.3d 351, 355.) “‘The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’” (Ibid.)
In Pearson the court concluded that lewd and lascivious conduct with a child under 14 years of age (§ 288, subd. (a)) is not a lesser included offense of sodomy (§ 289) because sodomy may be committed for a sadistic rather than a sexual purpose, but a violation of section 288, subdivision (a) requires that the molestation be accomplished with a sexual intent. (Id. at pp. 355-356.)
The present case presents similar circumstances. Section 243.4, subdivision (e)(1) provides: “Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, . . .”
Section 261 provides: “(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
[¶] . . . [¶] (3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.”
“Rape is a general intent crime[]” (People v. Osband (1996) 13 Cal.4th 622, 685), and “[t]he only intent required for the crime of rape itself is the intent to do the proscribed act[]” (People v. Dixon (1999) 75 Cal.App.4th 935, 943). Thus, like sodomy, rape could be committed for a nonsexual, sadistic purpose. Sexual battery, on the other hand, requires that the act be for a sexual purpose. Consequently, sexual battery is not an included offense of rape. (See ibid. [citing People v. Pearson, supra, 42 Cal.3d 351, in support of its conclusion that assault with intent to commit forcible rape is not an offense included in sexual battery].)
II & IV
Defendant contends in his third and fourth contentions, respectively, that the sentences imposed for the sexual battery and the petty theft must be stayed pursuant to section 654. This is so, he argues, because the sexual battery was based upon the act of rape and he was punished for the rape, and the petty theft was the basis for the burglary and he was punished for the burglary. The People acknowledge, and we agree, that defendant is correct. Accordingly we shall stay the sentences imposed for the sexual battery and the petty theft.
Section 654 provides: “(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.
III
Defendant contends the evidence is insufficient to support his convictions for burglary and petty theft. Defendant is wrong.
“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” (People v. Green (1980) 27 Cal.3d 1, 55.)
First degree burglary is committed when the defendant enters a residence with the intent to commit grand or petty theft or any felony. (§§ 459, 460, 490a.) Theft, either grand or petty, requires the intent to permanently deprive the possessor of the property taken. (People v. Avery (2002) 27 Cal.4th 49, 54.)
The evidentiary insufficiency urged by defendant is proof that “[defendant] and his drunken friends intended to permanently deprive the property owner of the beer keg” since it was returned the following day. The argument is weak.
Defendant admitted in his testimony that he and his friends, including Moe, returned to Joanne’s house to take the keg of beer from her garage. Defendant entered the house and created a distraction while the keg was taken. Clearly, defendant aided and abetted in theft of the keg. While it is true that the keg of beer was returned the next day, what defendant neglects to add is that the keg was returned by Moe only after Joanne confronted Moe at his apartment about the theft. A rational jury could, and impliedly did, conclude that at the time the keg was taken there was no intent to return it. The intent to return the keg arose only because of the confrontation with Joanne. Consequently, substantial evidence supports the theft and burglary charges.
V
Defendant argues that the prosecutor committed prejudicial misconduct when she commented upon his silence during a police interview and by impugning his integrity during rebuttal argument. We conclude that only the latter claim was misconduct and it was harmless.
The claims arise as follows. On November 10, 2003, approximately two weeks after Denise was raped, Detectives Desiree Carrington and Don Pollock went to defendant’s residence and conducted a tape recorded interview with him. During the interview, Detective Carrington repeatedly asked defendant if something had occurred at the Halloween party between himself and a female guest in a bedroom and whether he had an argument with Joanne, the party’s hostess, regarding an accusation the female guest had made against defendant. While defendant admitted to having been in the bedroom with the female, he claimed he only talked with her and attempted to get her telephone number. Defendant denied knowing of any accusation by the female or of having a conversation with Joanne about it.
Defendant testified on direct examination that he had consensual intercourse with Denise in the bedroom. On cross-examination the prosecutor asked defendant why he had not told Detective Carrington during the tape recorded interview that he had intercourse with Denise. The following exchange occurred: “Q. You weren’t hiding the fact you had sex with [Denise]? A. At that point in time when these questions were coming up, I wondered what was being said about me at the party. Q. why wouldn’t you want to clear your name? A. I do. That’s why I’m here in trial, Ma’am. I’m trying to clear my name in trial right now, Ma’am. I am. Q. I understand that. [¶] Why didn’t you want to clear you name when you were -- . . . .”
At this point, defense counsel objected that the prosecutor was getting “dangerously close to the 5th Amendment, and it’s an inappropriate area to get into.” When the prosecutor pointed out that defendant had waived his 5th Amendment right by testifying, counsel responded that defendant’s testifying did not waive his 5th Amendment right back when he was being interviewed by the police. The court sustained the objection. During closing argument, the prosecutor referred to defendant’s “lack of statements” to the detectives during the interview regarding his encounter with the victim and then stated, “And the Defendant testified that he remembered having sex with the victim. He just chose not to talk about it, and instead lied and said he was only in the room one time. . . . No reasonable reason why he would not remember.”
Defendant argues the prosecutor’s questioning of him as to why he did not “clear his name” and her comment during argument regarding his “lack of statements” to Detective Carrington, i.e., his failure to tell Carrington that he had sexual intercourse with Denise, were improper because they “went beyond the mere comment on a defendant’s pre-Miranda silence” and lessened the prosecution’s burden of proof by inviting the jury to convict him because he had not proven his innocence.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
The argument fails because, contrary to defendant’s assertion, there was no “pre-Miranda silence” regarding defendant’s conduct with Denise. During the interview, Detective Carrington repeatedly asked defendant about his conduct with “the female guest in the bedroom,” and defendant repeatedly claimed that he did no more than speak with her the only time he was in the bedroom. In other words, defendant denied having sexual intercourse with Denise. Moreover, defendant expressly testified on direct examination as to why he did not tell Carrington about having intercourse with Denise, namely, he “[d]idn’t know why [Carrington] was there.” There simply is no basis in the evidence for a claim of violation of defendant’s right to remain silent, and the trial court erred in sustaining defendant’s objection on such grounds. Consequently, there was no misconduct by the prosecutor.
Notably, defendant does not argue that prior to, or during, the interview, he was entitled to Miranda warnings, nor could he reasonably make such an argument. The interview took place in defendant’s home, defendant was neither under arrest nor detained, the interview was conducted partially during the presence of defendant’s uncle, and during the interview defendant checked his voice mail. Obviously, defendant could not reasonably have been considered to be in custody during the interrogation, a circumstance necessary to invoke the requirement that the suspect be given specific constitutional admonishments, including his or her Fifth Amendment right to remain silent. (People v. Storm (2002) 28 Cal.4th 1007, 1037 [“Miranda procedures apply only in the custodial setting”].)
Defendant’s claim that the prosecutor committed misconduct by impugning his counsel’s integrity arises as follows: During closing argument, defendant’s counsel informed the jury that he had been both a prosecutor and a defense attorney and that it was difficult for the prosecution and law enforcement “to be completely objective” in finding out the facts because they are trying to protect victims of crime.
During rebuttal the prosecutor responded that while counsel may have had difficulty with being objective and searching for the truth, she (the prosecutor) did not. The prosecutor later added, “The Defense duty is to advocate for their client and be biased, and it’s the prosecution’s duty to search for the truth.” Counsel objected to the prosecutor’s comment “as a complete misstatement of what my duty is to my client. She’s talking about her own duty.” The prosecutor said, “I’ll withdraw[,]” and the court responded, “All right.”
Even assuming that defendant’s objection can be characterized as one of prosecutorial misconduct, the comment was harmless. The prosecutor withdrew the comment, thereby effectively apprising the jury that it was improper; the court instructed the jury that “[s]tatements made by the attorneys during the trial are not evidence[;]” the court also instructed the jury that they were to decide the case only on the law and evidence received in the trial; and the prosecution’s case was strong and defendant’s case was weak. Consequently, the challenged statement could not reasonably be said to have affected the verdict.
VI
The court imposed consecutive terms for the rape and burglary convictions because the offenses involved separate facts, separate victims, and different times. Defendant contends that imposing consecutive sentences for the reasons cited by the court violated the principles set forth in Blakely requiring that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Blakely v. Washington, supra, 530 U.S. 296, 303-305 [159 L.Ed.2d 403, 413-414].)
At the time of the filing of the briefs in this case, the California Supreme Court had rendered its decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), holding that Blakely did not apply to either California’s upper term or consecutive sentencing scheme. (Id. at pp. 1244, 1261, 1263-1264.)
However, after the filing of the briefs herein, the United States Supreme Court filed its decision in Cunningham v. California (2007) __ U.S. __ [166 L.Ed.2d 856], holding that Blakely did apply to California’s upper term sentencing law, thereby overruling Black I on this point. (Cunningham, supra, __ U.S. __ at p. ___ [ 166 L.Ed.2d at p. 864].) Although Cunningham did not address the applicability of Blakely to California’s consecutive sentencing scheme, the reasoning of Cunningham gave rise to doubt regarding Black I’s continuing validity as to consecutive sentencing. That doubt, however, was erased when the California Supreme Court, upon reconsideration of Black I, issued its opinion in People v. Black (2007) 41 Cal.4th 799 (Black II), iterating that Cunningham/Blakely principles did not apply to California’s consecutive sentencing scheme. (Id. at pp. 820-823.) Consequently, we reject defendant’s contention.
DISPOSITION
The sentences imposed on counts II and IV are hereby stayed pursuant to Penal Code section 654. The superior court is directed to prepare an amended abstract of judgment reflecting the stayed sentences and forward a copy to the Department of Corrections and Rehabilitation.
We concur: ROBIE, J., BUTZ, J.
(b) Notwithstanding subdivision (a), a defendant sentenced pursuant to subdivision (a) shall not be granted probation if any of the provisions that would otherwise apply to the defendant prohibits the granting of probation.”